Com. v. Parker, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD LEE PARKER, III :
:
Appellant : No. 1371 WDA 2018
Appeal from the Judgment of Sentence Entered August 22, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008492-2016
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 27, 2021
Appellant, Edward Lee Parker, III, appeals from the judgment of
sentence entered on August 22, 2018, in the Court of Common Pleas of
Allegheny County. We affirm.
This appeal stems from a motor vehicle stop and the trial court’s denial
of Appellant’s related suppression motion. The trial court summarized the
procedural history of this case as follows:
Appellant was charged by criminal information (CC
201608492) with one count each of person not to possess1;
carrying a firearm without a license2; possession with intent to
deliver a controlled substance3; possession of a controlled
substance4; possession or distribution-marijuana or hashish5;
driving while operating privilege is suspended or revoked6; and
windshield obstructions and wipers.7
1 18 Pa.C.S.A. §6105(a)(1);
2 18 Pa.C.S.A. §6106(a)(1);
3 35 [P.S.] §780-113(a)(30);
4 35 [P.S.] §780-113(a)(16);
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5 35 [P.S.] §780-113(a)(31);
6 75 Pa.C.S.A. §1543(a);
7 75 Pa.C.S.A. §4524(e)(1).
Appellant filed a suppression motion which was denied after
a hearing on November 17, 2017. On January 8, 2018, [the trial
court judge] recused [himself], and the case was reassigned to
the Honorable Beth Lazzara. On May 24, 2018, Appellant
proceeded to a non-jury trial and was found guilty of person not
to possess, carrying a firearm without a license, and the summary
windshield obstructions and wipers. The charge of driving while
operating privilege is suspended or revoked was withdrawn.
On August 22, 2018, Appellant was sentenced as follows:
Count one: person not to possess — a period of
incarceration of a year less a day to two years less two days and
four years’ probation;
Count two: carrying a firearm without a license-four years’
probation concurrent with the probation imposed at count one;
and
Count seven: windshield obstructions and wipers-a fine of
$25.
This timely appeal follow[ed].
Trial Court Opinion, 6/17/19, at 2-3. Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues for our review:
I. Whether the suppression court erred in denying
[Appellant’s] motion to suppress where the traffic stop of
[Appellant’s] vehicle was not supported by reasonable suspicion
to believe that he had violated 75 Pa.C.S.A. § 4524(e) (Windshield
Obstructions and Wipers; Sun Screening and Other Materials
Prohibited) of the Motor Vehicle Code, in violation of [Appellant’s]
rights under the Fourth and Fourteenth Amendments of the United
States Constitution, and Article 1, Section 8 of the Pennsylvania
Constitution?
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II. Whether the suppression court erred in denying
[Appellant’s] motion to suppress where the police searched
[Appellant’s] vehicle without a warrant, and no valid exception to
the warrant requirement applied based on the facts and
circumstances presented (such as the automobile exception, a
search pursuant to Michigan v. Long, 463 U.S. 1032 (1983) and
its progeny, a consent search, or an inventory search), in violation
of [Appellant’s] rights under the Fourth and Fourteenth
Amendments of the United States Constitution, and Article 1,
Section 8 of the Pennsylvania Constitution?
Appellant’s Brief at 5.
With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has stated the following:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
the ruling of a suppression court, we must consider only the
evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of
the record. . . . Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). “It is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.
2006). Moreover, our scope of review from a suppression ruling is limited to
the evidentiary record that was created at the suppression hearing. In re
L.J., 79 A.3d 1073, 1087 (Pa. 2013).
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In his first issue, Appellant argues that the trial court erred in denying
his suppression motion because the stop was not supported by reasonable
suspicion. Appellant’s Brief at 31. Appellant acknowledges that where a
violation of the Motor Vehicle Code is suspected, but a traffic stop is necessary
to further investigate whether a violation has occurred, the police must
possess only reasonable suspicion to make the stop. Id. at 31. Appellant
argues, however, that in the case sub judice, Officer Blake Maloney admitted
that he could see through the windows of Appellant’s vehicle, that Officer
Maloney did not carry window tint cards or any other device by which to
investigate a violation of Section 4524(e), and Officer Maloney undertook no
investigation to determine whether Appellant’s windows were illegally tinted.
Id. at 31-32. Appellant also posits that prior to the stop, Officer Maloney was
surveilling a known drug dealer’s house and pulled Appellant over after seeing
Appellant leave the drug dealer’s house. Id. at 32. Accordingly, Appellant
argues that given these circumstances, the Commonwealth failed to
demonstrate that Officer Maloney had reasonable suspicion to believe that
Appellant’s vehicle was in violation of Section 4524(e). Id.
Section 6308 of the Motor Vehicle Code provides that when a police
officer
has reasonable suspicion that a violation of this title is occurring
or has occurred, he may stop a vehicle, upon request or signal,
for the purpose of checking the vehicle’s registration, proof of
financial responsibility, vehicle identification number or engine
number or the driver’s license, or to secure such other information
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as the officer may reasonably believe to be necessary to enforce
the provisions of this title.
75 Pa.C.S. § 6308(b).
[T]o establish grounds for reasonable suspicion, the officer must
articulate specific observations which, in conjunction with
reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved in
that activity. The question of whether reasonable suspicion
existed at the time [the officer conducted the stop] must be
answered by examining the totality of the circumstances to
determine whether the officer who initiated the stop had a
particularized and objective basis for suspecting the individual
stopped. Therefore, the fundamental inquiry of a reviewing court
must be an objective one, namely, whether the facts available to
the officer at the moment of the [stop] warrant a [person] of
reasonable caution in the belief that the action taken was
appropriate.
... [“]While an actual violation need not be established, a
reasonable basis for the officer’s belief is required to validate the
stop.”
Commonwealth v. Muhammed, 992 A.2d 897, 900–901 (Pa. Super.
2010)(citations omitted).
The relevant section of the motor vehicle code addressing window tint
provides, in relevant part, as follows:
(e) Sun screening and other materials prohibited.—
(1) No person shall drive any motor vehicle with any
sun screening device or other material which does not
permit a person to see or view the inside of the vehicle
through the windshield, side wing or side window of
the vehicle.
(2) This subsection does not apply to:
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(i) A vehicle which is equipped with tinted
windows of the type and specification that
were installed by the manufacturer of the
vehicle or to any hearse, ambulance,
government vehicle or any other vehicle
for which a currently valid certificate of
exemption has been issued in accordance
with regulations adopted by the
department.
(ii) A vehicle which is equipped with tinted
windows, sun screening devices or other
materials which comply with all applicable
Federal regulations and for which a
currently valid certificate of exemption for
medical reasons has been issued in
accordance with regulations adopted by
the department.
(3) A certificate of exemption shall be issued by the
department for a vehicle which is:
(i) Registered in this Commonwealth on
the effective date of this subsection and is
equipped with a sun screening device or
other material prohibited under paragraph
(1) on the effective date.
(ii) Equipped with tinted windows, sun
screening devices or other materials for a
physical condition that makes it necessary
to equip the motor vehicle with sun
screening material which would be of a
light transmittance or luminous
reflectance in violation of this section.
(A) A certificate of exemption
for medical reasons shall be
issued only if the owner or
registrant of the vehicle, or a
person residing in the
household of the owner or
registrant who regularly
drives or is driven in the
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vehicle, suffers from a
physical condition determined
by the department, in
consultation with the Medical
Advisory Board, to justify the
exemption.
(B) Any person requesting an
exemption for medical
reasons shall have his
physical condition certified to
the department by a licensed
physician or optometrist.
(4) A certificate of exemption issued under this
subsection shall be carried in the vehicle and
displayed on request of a police officer.
75 Pa.C.S. § 4524(e)(1)–(4).
The trial court issued the following findings of fact with respect to the
suppression motion and hearing:
On November 8th, 2015, Duquesne Police Officer Blake
Maloney was conducting a surveillance of Vince Felder’s home in
the City of Duquesne. Felder himself was known to be a gun
carrying drug dealer and the house itself a hotbed of criminal
activity in that same regard. At approximately 4:00 a.m., Officer
Maloney observed [Appellant], and one Tyrone Surratt, leave the
house again at 4:00 in the morning. Officer Maloney observed
[Appellant] and Tyrone Surratt leave the home, and the two
individuals entered the Mercedes vehicle; [Appellant] into the
driver’s side of the vehicle and Surratt into the front passenger
seat.
The vehicle left the parking lot, adjacent to the Felder home,
onto Kennedy Avenue. As the vehicle exited that parking lot,
Officer Maloney observed a heavy and illegal amount of tint on the
four side windows of [Appellant’s] vehicle, a potential violation of
the Pennsylvania Motor Vehicle Code laws. Based on what he
perceived to be an illegal amount of window tint, I believe it is
Section 4524 of the Vehicle Code, Officer Maloney initiated a traffic
stop on Homestead-Duquesne Road, itself being a high crime
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area. Officer Maloney activated the lights of his vehicle and also
hit the siren of his marked police vehicle one time to initiate that
traffic stop.
[Appellant] pulled over, and when he did so, the car was
actually parked illegally, but nonetheless, a stop unfolded as
follows, noting also that Officer Maloney was the only officer on
the scene at that time. Maloney, before leaving his vehicle to
approach [Appellant’s] vehicle, activated the spotlight on his car
to illuminate better [Appellant’s] vehicle.
Officer Maloney exited his vehicle and approached
[Appellant’s] vehicle from the driver’s side, with a flashlight, and
also as noted, to aid in the illumination from his own vehicle, the
spotlight that is. As he approached the driver’s side of the vehicle,
he observed [Appellant] fully extend himself into the back seat of
the vehicle toward the rear passenger seat. That is, he reached
between the driver and passenger’s area. That would be to the
driver’s right, obviously. This caused an immediate concern [for]
Officer Maloney, because of the high crime area, the inherent
danger of traffic stops in which officers have been seriously injured
and/or killed. Also the potential association with Felder and that
household in Duquesne where the two persons originally left from.
When Officer Maloney reached the driver’s side window,
[Appellant] stopped reaching and had returned to the front seat
and faced Officer Maloney. Simultaneous with this activity, the
passenger, Surratt, was scooping material and throwing it out the
passenger side window. Officer Maloney perceived and believed
the substance to be marijuana, by its color and composition, and
again throwing it out the passenger side window.
A fellow Duquesne officer, Officer Kuks, was arriving near
this point in time as backup for Officer Maloney. At this point in
time, Officer Maloney asked both occupants for identification
cards. Both [Appellant] and Surratt complied. Neither had
driver’s licenses, but had Pennsylvania ID cards. Officer Maloney
was able to run the information through NCIC, as Officer Kuks
kept the situation stable or static. Both Surratt and [Appellant]
came back as having suspended licenses.
And at that juncture, of course, as neither individual had a
valid driver’s license, and the vehicle was parked illegally, it would
have to be towed. Officer Maloney asked [Appellant] to turn off
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the vehicle and step out of the vehicle for a weapons pat down.
[Appellant] complied and was patted down with negative results.
Officer Maloney next conducted a weapons pat down of
Surratt. A suspected marijuana blunt was recovered from Surratt.
He was cited for Disorderly Conduct and released from the scene.
Officer Maloney then inspected the interior of the vehicle, and in
the area to which [Appellant] had reached and extended himself
he found a brown lunch bag with the contents suspected crack
cocaine, marijuana, a handgun, sandwich baggies, a digital scale,
from again the rear passenger seat floorboard area where
[Appellant] had been reaching upon Officer Maloney’s approach.
Subsequent to them being detained, an inventory search of
the vehicle was conducted. In that regard, [Appellant] was
arrested and the vehicle was towed.
Trial Court Opinion, 6/17/19, at 4-7.
The trial court’s findings of fact are supported by the testimony provided
at the suppression hearing. Moreover, the trial court’s findings of fact support
the conclusion that Officer Maloney stopped the vehicle on the basis of a
suspected motor vehicle violation, specifically heavy tint on the car windows.
As the relevant statute provides, a person may not “drive any motor vehicle
with any sun screening device or other material which does not permit a
person to see or view the inside of the vehicle through the windshield, side
wing or side window of the vehicle.” 75 Pa.C.S. § 4524(e)(1). As noted, the
statute also provides for exceptions to that prohibition by allowing for
certificates of exemption. 75 Pa.C.S. § 4524(e)(3). Further, the certificate of
exemption “shall be carried in the vehicle and displayed on request of a police
officer.” 75 Pa.C.S. § 4524(e)(4). Thus, when Officer Maloney observed the
vehicle and its heavily tinted windows, he had reasonable suspicion to stop
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the vehicle and conduct further investigation as to whether the operator
possessed a certificate of exemption. Officer Maloney’s testimony supports
the conclusion that was his intent.
Appellant’s assertion that Officer Maloney admitted that he could see
into the car is unsupported by the record. Officer Maloney testified that the
heavily tinted windows prohibited him from seeing how many occupants were
in the vehicle. N.T., 7/25/17, at 21. Based on the amount of window tinting,
Officer Maloney conducted the traffic stop. Id. Officer Maloney testified that
after he had stopped Appellant’s car, he directed the spotlight from his police
cruiser into the back of Appellant’s vehicle. Id. at 38. Even then, with the
additional use of his flashlight, Officer Maloney explained: “[I could n]ot fully
[see]. But, yes, I could see better than I could before.” Id. at 38. Thus, the
evidence of record contradicts Appellant’s assertion that Officer Maloney
admitted he could see into the vehicle. Therefore, Appellant’s claim that the
officer’s basis for stopping the vehicle because he could not see into the
vehicle as a result of heavy window tinting was unsupported by the record is
baseless.
Moreover, the trial court “determined that the stop was not pre-textual
in nature as the record, based upon the totality of the circumstances,
supported that the officer initiated the stop in good faith for a motor vehicle
violation.” Trial Court Opinion, 6/17/19, at 8. Accordingly, we agree with the
trial court that the stop was lawful. Therefore, the trial court did not err in
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denying Appellant’s suppression motion on this basis. Appellant is entitled to
no relief on this claim.
In his second issue, Appellant argues that the trial court erred in denying
his motion to suppress because Officer Maloney did not have a warrant to
search Appellant’s vehicle, and no exceptions to the warrant requirement
existed to justify the search of the vehicle. Appellant’s Brief at 46. As such,
Appellant argues that trial court erred in failing to suppress, as fruit of the
poisonous tree, the firearm that Officer Maloney recovered during the search
of Appellant’s vehicle. Id. at 46-47.
This Court has explained:
[I]t is hornbook law that the Fourth Amendment to the United
States Constitution as well as Article I, § 8 of the Pennsylvania
Constitution protect citizens from ‘unreasonable searches and
seizures.’ Warrantless searches and seizures . . . are
unreasonable per se, unless conducted pursuant to specifically
established and well-delineated exceptions to the warrant
requirement. One such exception, the Terry[1] “stop and frisk,”
permits a police officer to briefly detain a citizen for investigatory
purposes if the officer “observes unusual conduct which leads him
to reasonably conclude, in light of his experience, that criminal
activity may be afoot.”
Terry further held that “when an officer is justified in
believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to
the officer or to others” the officer may conduct a pat down search
“to determine whether the person is in fact carrying a weapon.”
“The purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without
fear of violence.”
____________________________________________
1 Terry v. Ohio, 392 U.S. 1, 30 (1968).
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In order to conduct an investigatory stop, the police must
have reasonable suspicion that criminal activity is afoot. In order
to determine whether the police had reasonable suspicion, the
totality of the circumstances—the whole picture—must be
considered. Based upon that whole picture the detaining officers
must have a particularized and objective basis for suspecting the
particular person stopped of criminal activity. To conduct a pat
down for weapons, a limited search or “frisk” of the suspect, the
officer must reasonably believe that his safety or the safety of
others is threatened. If either the seizure (the initial stop) or the
search (the frisk) is found to be unreasonable, the remedy is to
exclude all evidence derived from the illegal government activity.
The Terry totality of the circumstances test applies to traffic
stops or roadside encounters in the same way that it applies to
typical police encounters. Moreover, the principles of Terry apply
to all occupants of the stopped vehicle, not just the driver.
Indeed, as we have observed, roadside encounters, between
police and suspects are especially hazardous, and that danger
may arise from the possible presence of weapons in the area
surrounding a suspect.
Commonwealth v. Simmons, 17 A.3d 399, 402-403 (Pa. Super. 2011).
In addressing this issue, the trial court provided the following analysis:
Immediately upon approaching the vehicle, the officer
noticed Appellant making furtive movements (i.e. reaching from
the driver’s side area toward the rear floor of the passenger seat,
and also noticed the passenger scooping what the officer, based
on his training and experience, believed to be marijuana from his
lap and throwing it out the window). These actions, coupled with
the time of day, it being a high crime area, and Appellant’s
association with the passenger (a known gun carrying drug
dealer) and the passenger’s house (which was known for criminal
activity), all led to the officer’s reasonable belief that criminal
activity was afoot. (F.F.C.L. 9-10). See Commonwealth v.
Simmons, 17 A.3d 399, 404 (Pa.Super. 2011)(holding that that
officer’s observations of furtive movements during the scope of a
lawful stop for a motor vehicle violation was sufficient to sustain
his reasonable belief that his safety may be in danger and justified
the Terry frisk).
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Neither Appellant nor the passenger had a valid driver’s
license, which at a minimum would have warranted the vehicle
being towed. Based upon the officer’s observations of the activity
taking place in the vehicle, i.e. Appellant reaching into the
backseat area of the vehicle, it was reasonable to believe
Appellant was possibly reaching for a weapon or attempting to
secret one. These actions clearly presented a danger to the officer
during the traffic stop. As such, the officer is permitted to remove
the occupants to conduct a search for weapons. See
Commonwealth v. Morris, 644 A.2d 721, 723 (Pa. 1994) (holding
that an officer may conduct a protective sweep of a vehicle where
he believes there are sufficient facts that would lead a reasonably
prudent person to believe his safety was in danger). As it applies
to a pat-down search, the fact that no weapon was found during
the pat-down is of no merit as it is the reasonable belief, based
upon the totality of the circumstances, that the person may have
had a weapon which is controlling.
Trial Court Opinion, 6/17/19, at 8-9.
The trial court’s conclusion is supported by evidence of record. As we
explained earlier, the vehicle was lawfully stopped for purposes of
investigating a potential motor vehicle violation. The totality of circumstances
witnessed by Officer Maloney led him to believe that the passengers of the
vehicle could be armed and dangerous. Therefore, Officer Maloney had valid
grounds to conduct a protective frisk of the passengers of the vehicle.
Simmons, 17 A.3d at 403. Additionally, Officer Maloney was authorized to
conduct a protective sweep of the interior of the vehicle. Commonwealth v.
Morris, 644 A.2d 721, 723 (Pa. 1994) (“The search of the passenger
compartment of an automobile . . . is permissible if the police officer possesses
a reasonable belief . . . that the suspect is dangerous and the suspect may
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gain immediate control of weapons.”). Accordingly, the trial court did not err
by denying Appellant’s motion to suppress on this basis.
Moreover, even if the items in the vehicle were not recovered pursuant
to a lawful Terry search, such evidence would have been inevitably discovered
during the inventory search. The inevitable discovery doctrine provides:
[E]vidence which would have been discovered was sufficiently
purged of the original illegality to allow admission of the
evidence....[I]mplicit in this doctrine is the fact that the evidence
would have been discovered despite the initial illegality.
If the prosecution can establish by a preponderance of the
evidence that the illegally obtained evidence ultimately or
inevitably would have been discovered by lawful means, the
evidence is admissible. The purpose of the inevitable discovery
rule is to block setting aside convictions that would have been
obtained without police misconduct.
Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009).
Accordingly, because the vehicle was parked illegally, and neither
Appellant nor the passenger had a valid driver’s license, the vehicle would
have been towed and impounded. As such, the firearm in the vehicle would
have been procured pursuant to a lawfully executed inventory search. See,
e.g., Bailey, 986 A.2d 863 (“[B]ecause the police conduct routine inventory
searches whenever a car is towed, and an inventory search includes looking
into obvious storage places . . . the gun would have inevitably been
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discovered absent police error or misconduct.”).2 Appellant is entitled to no
relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2021
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2Similarly, to the extent that the officer’s warrantless search could be viewed
as not justified by an exigency under our Supreme Court’s recent decision in
Commonwealth v. Alexander, ___ A.3d ___, 30 EAP 2019 (Pa. decided
December 22, 2020), because the car was to be impounded and towed, the
evidence would have been inevitably discovered.
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